Saddle Views Estate Ltd v Dunedin City Council
[2017] NZHC 1727
•25 July 2017
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CIV-2016-412-000085
CIV-2016-412-000137 [2017] NZHC 1727
BETWEEN SADDLE VIEWS ESTATE LIMITED
Appellant
AND
DUNEDIN CITY COUNCIL Respondent
Hearing: 6-9 June 2017 Appearances:
T J Shiels QC for Appellant
M R Garbett for RespondentJudgment:
25 July 2017
JUDGMENT OF DUNNINGHAM J
[1] Saddle Hill, near Mosgiel, is a local landmark. The earliest known record of its distinctive profile was made by Captain James Cook in 1770 when he sailed past this area and recorded seeing “a remarkable saddle hill laying near the shore…”. Although some quarrying and mining occurred on the hill prior to 1960, it was limited in scale. However, in 1960, Downer and Co Limited (Downer) commenced quarrying rock from the smaller of the two hills joined by the saddle, known as Jaffray’s Hill. Quarrying has continued thereafter for over 50 years.
[2] In 2011, the Dunedin City Council (the Council) applied to the Environment Court for a declaration regarding the existence and extent of any rights to quarry Saddle Hill under the Resource Management Act 1991 (RMA). Those and related proceedings have had a convoluted history. Initially the Environment Court found that no consent had ever issued for the 1960 quarrying operations, and therefore no
deemed resource consent could exist under the RMA.
SADDLE VIEWS ESTATE LIMITED v DUNEDIN CITY COUNCIL [2017] NZHC 1727 [25 July 2017]
[3] That decision was appealed to the High Court and that Court held that the Environment Court had made two errors in assessing the relevant evidence.1 It allowed the appeal and set aside the declaration of the Environment Court. It did not make any alternative declarations but it did make a finding that a consent was granted, although the precise terms of the consent could not be accurately defined. That issue was the subject of a fresh application to the Environment Court for a
declaration.
[4] In an interim decision,2 and then a final decision,3 the Court made a range of findings, the practical effect of which was that, while a consent had been granted in
1960 under s 38A of the Town and Country Planning Act 1953 (TCPA 1953), there was no longer any right to quarry in reliance on that consent.
[5] Saddle Views Estate Limited (SVEL), the current owner of the quarry, takes issue with the Environment Court’s interim and final decisions, both on procedural and substantive grounds. It has appealed both decisions to this Court under s 299 of the RMA. That section confers a right of appeal on a question on law only. While some of the grounds of appeal in respect of the interim decision are overtaken by the outcome in the final decision, there remain live issues on appeal in respect of both decisions.
[6] Helpfully, SVEL has categorised the grounds of appeal into issues, whether they are raised in relation to one or both of the Environment Court’s decisions. These issues are as follows:
Issue 1 - Jurisdiction
The Environment Court made an error of law by making declarations which were not sufficiently related to the terms of the second declaration
application, and which therefore were beyond its jurisdiction.
1 Saddle Views Estate Ltd v Dunedin City Council [2014] NZHC 2897 [the First High Court
Decision].
2 Dunedin City Council v Saddle Views Estate Ltd [2016] NZEnvC 107 [Third Environment Court
Decision].
3 Dunedin City Council v Saddle Views Estate Ltd [2016] NZEnvC 199 [Fourth Environment
Court Decision].
Issue 2 – Res judicata/issue estoppel
The Environment Court was not entitled to make the declarations it did because they are inconsistent with the binding effect of the High Court decision, and the principles of res judicata and/or issue estoppel.
Issue 3 – No jurisdiction under s 310
The Environment Court had no power or jurisdiction under s 310 RMA to
make a “stand alone” declaration about the terms of the 1960 consent.
Issue 4 – Declaration A(2) wrong in law
Even if it was open to the Environment Court to enquire into whether the TCPA 1953 consent can still be “in force” at 30 September 1991 and become a resource consent, the second declaration is wrong in law as the TCPA 1953 consent is deemed by s 383 RMA to be a resource consent.
Issue 5 – Declaration A(1) wrong in law
The Environment Court erred in law in finding that the 1960 s 38A TCPA 1953 consent was limited by quantity and purpose.
Issue 6 – Bias and unfairness
The Environment Court erred by breaching fair trial principles, natural justice principles and s 27(1) New Zealand Bill of Rights Act, and/or by displaying apparent bias.
The procedural history
[7] In April 2011, the Council made its first application for a declaration regarding the rights the owners of the land at Saddle Hill have, under the RMA, to operate a quarry. It seems from the accompanying evidence that the application was prompted by concerns from some sectors of the community that quarrying operations had reached a point where they were likely to adversely affect the natural landform of Saddle Hill. That landform was specifically identified in the District Plan as a
significant landform feature and the Council wished to establish the extent of the landowners rights to quarry before that activity irretrievably affected that landform.
[8] The Council expressed the issue for the Court in terms of the following questions:
(a) whether there exists a lawful right for the Saddle Hill Quarry to operate on the site at 275 Saddle Hill Road, Saddle Hill (legally described as Lot 3 DP 317701 held in Certificate of Title OT69455); and
(b) if so, the extent of that right under the Resource Management Act
1991.
[9] At the same time the Council applied for an enforcement order prohibiting operation of the quarry beyond any s 10 existing use rights confirmed by the Environment Court in the concurrent declaration proceeding.
[10] The applications were referred to Court-assisted mediation but this did not resolve the dispute.
[11] In December 2012 the Council amended its application for a declaration, by including proposed wording for the declaration sought. The terms of that declaration assumed there were existing use rights to quarry, but that they were limited by the volume to be taken annually, the footprint of the area to be quarried, and by the requirement not to alter the profile of Saddle Hill. The grounds for the application stated that SVEL did not have a lawful right to operate the quarry under the District Plan, nor did the Council have a record of a resource consent authorising the quarry operation.
[12] SVEL’s position, however was that the use of the land at Saddle Hill as a quarry was authorised by the consent originally granted to Downer in 1960 by the Council’s predecessor, the Taieri County Council. That consent was now deemed to be a consent granted under the RMA by virtue of s 383 of the RMA. Alternatively,
the quarry was permitted by existing use rights and those were not limited in the way contended by the Council.
[13] On 22 August 2013, the Environment Court issued a decision declaring that the former Taieri County Council did not grant a consent under s 38A TCPA 1953 to Downer to commence quarrying in 1959 or 1960, and, consequently, that a right to a deemed resource consent under s 383 RMA did not exist. It reserved its decision on the nature and extent of any existing use rights (the First Environment Court
Decision).4
[14] A further Environment Court decision issued on 26 September 2013, where the Court declined to make a declaration as to the existence of existing use rights under s 10 of the RMA in relation to the quarry (the Second Environment Court Decision).5 The reasons for this included that the Court considered it had inadequate evidence about lawful establishment and discontinuance issues, and that those issues, and the conflicts of evidence, might be more readily resolved in enforcement
proceedings.
[15] SVEL appealed the First Environment Court Decision to the High Court. In a decision dated 20 November 2014 (the High Court Decision), the High Court set aside the declarations made in the First Environment Court Decision. The High Court found that the Environment Court had made two errors of law and that these affected:
(a) the weight the Environment Court gave to a letter from Mr Edwards, the Taieri County Council planning officer, to the county clerk on
26 April 1966, which referred to the Council having granted a permit in respect of the quarry; and
(b)the Environment Court’s assessment of the Council’s minutes of 1973 which referred to a consent being given by the Council in 1960.
4 Dunedin City Council v Saddle Views Estate Ltd [2013] NZEnvC 196.
5 Dunedin City Council v Saddle Views Estate Ltd [2013] NZEnvC 228.
In the circumstances, the High Court considered the Council had not established, on the balance of probabilities, that a consent had not been granted.
[16] The High Court went on to conclude that the activity “is authorised by a consent”. However, Whata J observed that “in the absence of a written record of the consent, it will be difficult for any Court to definitively find that [the removal of the entire hill] is expressly allowed by consent”. Instead, he considered that the parties should seek to reach consensus:6
On the proper scope of the activity, having regard to the full legal and factual matrix as at the time of the grant, including the likely scope of any grant given the implicit requirement of s 38A(2) to notify the public for activity that might significantly affect neighbourhood amenities.
[17] The parties could not reach consensus on the likely scope of any grant so, in March 2015, the Council made a further application to the Environment Court for a declaration as to the extent of the resource consent and conditions to quarry Saddle Hill. The terms of the declaration sought included that quarrying would only be permitted in an area identified as Area B on a survey plan attached to the application, which reflected Council’s view of the existing footprint of the quarry.
[18] Shortly before filing the second application for a declaration, the Council filed an interim enforcement order application and an enforcement order application. The interim enforcement order sought to prevent any earthworks outside the area identified as Area B on the attached survey plan while the second declaration application was being determined. The enforcement order application sought to prevent SVEL from operating the quarry beyond the scope of its resource consent as determined by the Environment Court in the second declaration application.
[19] A considerable time passed between the hearing of the second declaration application in late May 2015 and the issue of the Environment Court’s decision on
31 May 2016 (the Third Environment Court Decision). During that period the Court solicited additional information and submissions from the parties on further issues identified by the Court. Notwithstanding that, when the Environment Court issued
the Third Environment Court Decision, it did so as an interim decision.
6 At [137].
[20] In the Third Environment Court Decision the Court declined to make “the precise declaration sought”.7 Instead it directed the parties to lodge submissions on certain issues it identified and on whether alternative declarations should be made under s 313(b) RMA.8 Importantly, the Court indicated that it was considering making a declaration that the 1960 consent granted by the Taieri County Council was limited in scope and purpose, and did not contemplate quarrying would continue at the increased level after the airport at Momona was completed or after, at most, a further 50,000 cubic yards was quarried. The Court also sought submissions on whether, if the 1960 consent was to commence unlimited quarrying, the consent was still “in force” for the purpose of s 383 RMA. That included considering whether it was an existing use on the dates the Taieri County Council District Scheme and subsequent planning documents came into operation.
[21] The views expressed by the Court, albeit provisionally, caused SVEL concern. They raised the possibility that the consent granted in 1960 was either spent because it was limited to quantity and purpose, or that the activity may not still be in force to be recognised as pursuant to a deemed resource consent under s 383
RMA. SVEL immediately lodged an appeal and sought a stay of the Environment Court proceedings. I refused that stay on 27 July 2016, holding it was appropriate to consider SVEL’s grounds of appeal in light of the decision actually made by the Environment Court, rather than in light of its provisionally expressed views.9
[22] The fourth and final Environment Court decision issued on 13 October 2016 (the Fourth Environment Court Decision). It, too, was appealed by SVEL and that appeal, along with the issues arising in SVEL’s appeal of the Third Environment Court Decision which are still live, are the subject of this hearing.
[23] In the Fourth Environment Court Decision, the Court made three declarations. These were:
7 At [147].
8 At [148].
9 Saddle Views Estate Ltd v Dunedin City Council [2016] NZHC 1721.
(1) that in 1960 the Taieri County Council granted consent under s 38A Town and Country Planning Act 1953 (“TCPA 53”) to Downer and Co Ltd to commence quarrying of Jaffray Hill to supply approximately 50,000 cubic yards of rock for the construction of a new airport at Momona.
(2) that a consent to commence an activity under section 38A TCPA
1953 is not, as a matter of law, still “in force” within the meaning of section 383(b) of the Resource Management Act 1991 (“the RMA”);
(3) that independently of declarations (1) and (2), whether and to what extent quarrying on Jaffray Hill is authorised under a deemed consent under section 383 RMA depends (inter alia) on whether as a matter of fact quarrying was an existing use under the TCPA 1953 on
2 November 1970 (being the date the Taieri County Council district scheme came into operation).
[24] The practical effect of the first declaration was to determine that the consent granted in 1960 was spent by 1964 when the airport at Momona was completed. Any rights which endured would only be on the basis that they were existing use rights. The second and third declarations were statements as to the law.
[25] The second declaration reflected the Court’s view that a s 38A consent merely authorised the commencement of an activity. It did not provide a consent which could be recognised as “in force” under s 383 RMA and become a deemed resource consent. Its continuing lawfulness, including under the RMA, then depended on it retaining existing use rights.
[26] The third declaration addressed the position in the event a s 38A consent did authorise both the commencement and the continuation of the activity. A landowner would still need to demonstrate that the activity was continuing, as an existing use, at the time the Taieri County Council District Scheme came into operation in 1970, to have it recognised as a deemed consent under s 383 RMA.
[27] SVEL considers:
(a) there was no jurisdiction to make those declarations;
(b) that, in any event, the declarations are wrong in law; and
(c) the process by which the Court reached its decision was flawed.
These views are reflected in the grounds of appeal of the Third and Fourth Environment Court Decisions and are addressed on an issue by issue basis under the six headings set out below.
Issue 1 – Jurisdiction defined by application
SVEL’s submissions
[28] SVEL’s first ground of appeal is that the Environment Court erred in law by making declarations which were not sufficiently related to the Council’s second declaration application for there to be jurisdiction to make them. It says the Environment Court rejected the Council’s proposed declaration which contended that the conditions of the consent to quarry included an areal limitation. Nevertheless, the Court proceeded to:
(a) propose alternate declarations;
(b)direct the parties to file further submissions on the proposed declarations; and
(c) went on to make alternate declarations under s 313(b) of the RMA
which SVEL says were beyond the scope of the Council’s application.
[29] SVEL relies on the fact that the Council’s application stated it was applying for “a declaration as to the extent of the resource consent and its conditions”. It submits that this precluded the Court from making a declaration which denied the existence of a resource consent under the RMA. While SVEL acknowledges that s 313(b) RMA authorises making a declaration that departs from the declaration applied for, it says there “… plainly must be some limits” to the degree of departure. In this case, the application identified the issue in dispute by general introductory words that both assumed and asserted that there was an existing resource consent. However, instead of making a declaration which was related to the issue identified by the Council, the Environment Court made declarations which related to its own independently identified issues. It decided that there never was (and legally never could have been) a resource consent under the RMA, because the consent granted in
or about 1960 was either spent, or it only authorised the commencement of the activity, so there was no consent still in force in 1991 to obtain the protection of s 383 of the RMA as a deemed resource consent.
[30] The Court’s explanation that it was seeking to determine the “issues” or “fundamental issues” between the parties, and that the declarations it made were necessary or desirable for that purpose, did not, in SVEL’s view, justify making the resulting declarations. Even when exercising the power to make alternate declarations under s 313(b), the Court must confine itself to the matters raised by the parties. Where it goes beyond that, it has fallen into error.
[31] SVEL relied on the following statement by Lord Wilberforce to support its submission that the Court’s role was limited to determining the issues raised by the parties:10
In a contest purely between one litigant and another, … the task of the Court is to do, and be seen to be doing, justice between the parties... . There is no higher or additional duty to ascertain some independent truth. It often happens, from the imperfection of evidence, or the withholding of it, sometimes by the party in whose favour it would tell if presented, that an adjudication has to be made which is not, and is known not to be, the whole truth of the matter: yet if the decision has been in accordance with the available evidence and the law, justice will have been fairly done.
[32] SVEL’s submission was that these principles apply with equal force to proceedings in the Environment Court. For instance, in Waitakere City Council v Estate Homes Limited, the Supreme Court held that the Environment Court did not have authority to go behind the original resource consent application in order to determine the appeal, let alone to decide the appeal on a basis more favourable to the appellant than it had sought in its application.11 While that was in relation to a resource consent application, SVEL’s submission was that the test should apply equally to a declaration application. In this case, SVEL says the declarations made
were not ones that it would or might have contemplated from the second declaration
application. Furthermore, they did not even meet what SVEL says “appears to be the
10 Air Canada v Secretary for Trade [1983] 1 All ER 910 at 919.
11 Waitakere City Council v Estate Homes Limited [2006] NZSC 112, [2007] 2 NZLR 149, [2007] NZRMA 137 at [38].
Environment Court’s own test of meeting the spirit and intent of what was suggested
(but perhaps differing in inessential details)”.
[33] For these reasons it says all three declarations made in the Fourth
Environment Court Decision should be set aside.
The Council’s submissions
[34] The Council submitted that the Environment Court properly focused on the key unresolved issue between the parties, which was the scope of the activity. In other words, it sought to establish the terms of the consent granted under s 38A TCPA 1953, including any conditions or limits on it. The Environment Court’s function was not concluded simply because the Court did not agree with the precise assertions as to the scope of the consent made by the Council. If the Environment Court had simply decided that the declaration sought by the Council was not appropriate and declined to make a declaration, this would not have resolved the substantive dispute giving rise to the application. It would leave the parties and the public not knowing what the extent of the right to quarry was. The dispute as to SVEL’s rights was material, with wider environment effects at issue, and it needed to be resolved. It was therefore appropriate for the Court to consider whether to make a modified or alternative declaration in order to do that.
[35] In addition, there is a fundamental difference between a civil proceeding and an application for a declaration, as there is express jurisdiction under s 313(b) RMA to make an alternative declaration. That section provides:
After hearing the applicant, and any person served with notice of the application, and any other person has the right to be represented at proceedings under s 274, who wishes to be heard, the Court may-
(a) make the declaration sought by an application under s 311, with or without modification; or
(b) make any other declaration that it considers necessary or desirable;
or
(c) decline to make a declaration.
[36] Furthermore, the Environment Court’s authority to make alternate declarations under s 313 is supported by the Court of Appeal’s decision in Burrell Demolition v Wellington Regional Council. There it was said:12
Although discretionary in nature, the power given to the Environment Court to make declarations is a useful tool in the administration of the Act. We agree with Doogue J that particularly when parties who are faced with a live issue, as these parties were, combined to seek declaratory assistance, the Environment Court should be slow to decline relief. … the fact that the Environment Court Judge found the formulation of the declaration sought to precise and restrictive was not a sufficient reason of itself to decline to make any declaration at all.
[37] The Council submitted that the Environment Court’s understanding of its jurisdiction under s 313(b) was entirely appropriate and consistent with the scheme of the RMA. The Environment Court said:
(a) the jurisdiction of s 313(b) RMA is conferred on the Court, not on the parties;
(b)what is “necessary” should be interpreted as necessarily flowing from the original application or potentially necessary to resolve the issue between the parties;
(c) the ability to make an alternate declaration that is “desirable” confers a wide power on the Court, although that must be determined by the “fundamental issues in the proceedings”. In other words, any alternative suggested by the Court should fairly and reasonably relate to the fundamental issues in the proceedings; and
(d)the consideration of an alternative declaration must follow a fair procedure.
[38] The Council says the Environment Court properly exercised its powers under s 313 and the declarations made by the Court were directed at the key issue in dispute between the parties. Furthermore, the Court identified the alternative
declarations it was considering making in its interim decision and invited the parties
12 Burrell Demolition v Wellington Regional Council CA161/01, 18 March 2002 at [12].
to make submissions on them. Both parties exercised that right, filed extensive written submissions on the proposed declarations, and agreed that the Court could issue its final decision on the papers. This was, in the Council’s submission, consistent with the principles of natural justice and appropriate in this case.
Discussion
[39] The Court’s jurisdiction to make a declaration must be considered in light of the statutory framework of the RMA and, in particular, the express power given to the Court unde s 313 to make either a modified declaration or “any other declaration that it considers necessary or desirable”. For that reason, comparisons with the Court’s task in determining a proceeding between civil litigants are of limited relevance. Of course, the obligation to observe the principles of natural justice, and to ensure no party is taken by surprise by the Court’s exercise of its power to make alternate declarations, are as relevant in these proceedings as in any other litigation. However, it is a question of fact whether that obligation has been met in any particular case.
[40] In the present case, the real question is whether the declarations made went beyond the issues raised by the parties. Those issues emerged both through the background to the proceedings, and were identified in the grounds for the Council’s second declaration application.
[41] While the Council sought a declaration that a resource consent to quarry Saddle Hill existed on specified conditions, the grounds for the application referred to the High Court having issued a decision determining that the quarry “is authorised by a consent but that the precise terms of the consent cannot be accurately defined” and stated that the Council “seeks to confirm the extent of the right of the respondent to operate a quarry on this site”. It is clear from that background that what was in issue was the current position as to the respondent’s right to operate a quarry on the site, in light of the High Court’s decision.
[42] Looked at objectively, the High Court’s decision did no more than find that a consent was granted by the Council’s predecessor in or around 1960, but that it was not likely to have been on terms which would allow the removal of the entire hill.
Beyond that, no other findings were made. Despite referring to the consent in the present tense, the High Court’s decision did not address the issue of whether the consent still endured to authorise the quarrying which was currently occurring on the site.
[43] Because the application was prompted by the Council’s desire to find out exactly what rights there were to quarry the site at the present time, I consider it was open to the Environment Court to enquire into, and make such declarations as it saw fit on that issue, as long as the principles of natural justice were observed. That issue is discussed further under Issue 6, where allegations of bias and breaches of natural justice are raised.
[44] The first declaration makes a definitive ruling on the scope of the consent and answers the question put before the Environment Court. In light of that finding, the consent can not be relied on to authorise the current quarrying operations as the consented activity was completed in 1964. Having made that declaration, the Court needed to address whether it was necessary or desirable to go on to make the other declarations which were both moot in light of the findings in the in the first declaration. Obviously, in those circumstances, the second and third declarations were not “necessary” to resolve the issue in dispute. The question is whether there was jurisdiction to make them because they were “desirable”.
[45] The general principles which govern the grant of declaratory relief require there to be a “real and not a theoretical question to be answered” and the declaration must have “utility”.13 Given the content of the first declaration, the second and third declarations embark on theoretical questions, exploring alternate legal analyses, which have no real utility to the parties. As Asher J said in Simpson v Whakatane District Council:14
Court time is a precious commodity, and cannot sensibly be spent on deciding matters that have only academic interest or which prove a point of opinion rather than resolve a dispute. Moreover, there is considerable danger in the Courts deciding issues which are not contested.
13 Wool Board Disestablishment Company Ltd v Saxmere Co Ltd [2010] NZCA 513 at [141].
14 Simpson v Whakatane District Council at [22].
[46] In the same decision he went on to cite Viscount Simon LC in Sun Alliance
Insurance Co Association of Canada v Gevirs, who said:15
I do not think it would be a proper exercise of the authority which this House possesses to appeals if it occupies time in this case in deciding an academic question, the answer to which cannot affect the respondent in any way...
[47] That said, Asher J recognised that this principle is not absolute. On occasions, the public interest may dictate a determination of an important point, and it may be convenient to do so even when there is no live issue.16 However, the Courts have emphasised that caution needs to be exercised before determining a point which is moot or merely an abstract question of law.17
[48] The above propositions refer to the position in the general law, rather than specifically to the statutory regime to make declarations under the RMA. However, I am satisfied that the same general limitations on the grant of declaratory relief apply to declarations made under the RMA. In particular, the Court will not make declarations that have no utility, or which concern matters that are trite and self-
explanatory, or are academic.18 Furthermore, the Court is not empowered to make
open declarations that may affect the rights of others who are not parties to the proceeding.19
[49] Thus, while the words “necessary or desirable” contained in s 313(b) confer a broad discretion on the Environment Court, the established authorities continue to limit the circumstances in which a declaration is granted. Consequently the Courts have resisted making declarations which go beyond what is needed to resolve the immediate dispute between the parties, recognising the coercive power of declaratory relief and the undesirability of making declarations which will bind future parties who have not been heard on the issue.
[50] While the Environment Court considered, in general terms, whether it was necessary or desirable to make alternate declarations to that proposed by the Council,
15 Sun Alliance Insurance Co Association of Canada v Gevirs [1944] AC 111 at 113-114.
16 R v The Home Secretary, ef p Salem [1999] 1 AC 450 at 456.
17 Ainsbury v Millington [1987] 1 WLR 379 at 381.
18 Environmental Defence Society Inc. v Kaipara District Council [2010] NZEnvC 284 at [52] and
Re Far North District Council EnvC Auckland A073/2004, 25 May 2004 at [27].
19 Berryman v Waitaki City Council EnvC Auckland A046/98, 4 May 1998 at 5.
it failed to address that question in relation to the making of the second and third declarations. These declarations addressed questions of law which were hypothetical once the first declaration was made, and, as between themselves, expressed alternative views as to the legal position. The second declaration expressed the view that a consent to commence an activity under s 38 TCPA 1953 had no continuing effect and so could never be a consent that was “in force” to obtain the protection of the s 383 RMA as a deemed resource consent. The third declaration expressed an alternative view of the law which assumed that a s 38A 1953 TCPA consent could obtain the protection of s 383 RMA, but that would depend, among other things, on whether the quarrying was an existing use on the date the Taieri County Council district scheme came into operation. Thus, not only were the second and third declarations hypothetical in light of the first declaration, but the third declaration was hypothetical in light of the second declaration, as it assumed the second was not a definitive statement of the law.
[51] In my view, the Court should have considered whether it was necessary or desirable to make the second and third declarations when:
(a) neither party actively contended for these declarations on the law;
(b)they were not required to resolve the matter at issue once the first declaration was made; and
(c) they did not clarify the law because they identified two inconsistent possibilities for a s 38A 1953 consent (no continuing effect following grant, or continuing effect depending on continuing use); and
(d)the second declaration was expressed as a general statement of the law that could affect other parties who did not participate in the decision.
For all these reasons, I consider the Court erred in law in proceeding to make declarations on these issues because it was neither necessary, nor desirable to make them in the circumstances.
[52] I observe however, that it is understandable the Court wished to signal its concerns about the parties’ assumptions that a s 38A consent would normally be recognised as a s 383 RMA deemed resource consent. However, that could have been done equally well through recording those views in the judgment (where their status would have been obiter dicta) without issuing declarations on them.
[53] I therefore accept that there was an error in law in making declarations 2 and
3 because, in the circumstances, they were beyond the jurisdiction the Court had under s 313 RMA.
Issue 2 – Declarations prevented by principles of res judicata and/or issue estoppel
SVEL’s submissions
[54] SVEL contended that the Environment Court was not entitled to make the declarations it did because they are inconsistent with the binding effect of the First High Court Decision. Although the Environment Court concluded that it was not precluded from considering whether the 1960 consent was still in force, SVEL considers that the High Court’s decision amounted to a finding that a deemed resource consent existed under s 383 RMA. If that is the case, then, with reference to the principles set out in the Court of Appeal decisions in Shiels and Blakely and van Heeren v Kidd, SVEL claimed that an issue estoppel had arisen because the High Court judgment had determined an issue as an essential and fundamental step
in the logic of the judgment and without which it could not stand.20
[55] In SVEL’s submission, the High Court clearly understood that it was the presence or absence of a “resource consent” that was relevant and that s 383 RMA was a necessary and logical step in establishing the existence of a resource consent. Because Whata J repeatedly made reference to this issue and, at [62](e), set out the appellant’s submission that “a s 38A consent is now an existing permission under s 383 of the RMA and deemed resource consent”, SVEL contends that is sufficient to
make the existence of a resource consent an integral step in the Court’s reasoning
20 Shiels and Blakely [1986] 2 NZLR 262 (CA); van Heeren v Kidd [2016] NZCA 401 at [1].
and to prevent that issue being revisited by the Environment Court in the Third and
Fourth Environment Court Decision.
[56] Mr Shiels then set out four possible explanations for why the Environment Court may have considered it was not precluded from revisiting what SVEL said was the High Court’s finding that there was a resource consent. These were:
(a) it might have considered that the High Court decision, which did not make a declaration, did not have the same preclusion effect as a declaration;
(b)it may have considered that, while the parties were precluded from raising the issue, the Court was not;
(c) the Court may have distinguished the preclusion effect of a formal declaration from the preclusion effect of the factual and legal findings or holdings underpinning the formal declaration; or
(d)it may have relied on its statement that issue preclusion or estoppel is not obligatory under the RMA, especially not in declaratory proceedings.
[57] In respect of the last possible reason (which seemed the most likely basis on which the Court proceeded), SVEL submitted that cause of action estoppel and issue estoppel are not confined to private law,21 and the Environment Court’s perceived difficulty with applying principles of res judicata in a declaratory proceeding was not supported by authority.22 In this case the High Court’s decision creates a “cause of action estoppel preventing Dunedin City Council from contending, or the Environment Court finding, that the s 38A TCPA 53 consent was not ‘in force’ on
30 September 1991”.
21 Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273 at 289.
22 Sheils v Blakely, above n 19; Teal Investments Ltd v Higham Motors (1975) Ltd HC, Auckland
A958/79, 27 March 1981 at 10.
The Council’s submissions
[58] The Council’s starting point is that it is not entirely clear which specific “issue” SVEL is arguing is estopped. While no issue is taken with the statements of law on what amounts to an issue estoppel or a cause of action estoppel, their application depends on what the High Court has actually decided. The only issue that the High Court decided was that it was not satisfied that the Council had proved there was no consent granted under s 38A TCPA 1953. The High Court then specifically left open, for the parties to resolve, the proper scope of the activity. The Environment Court proceeded on the basis that there was a consent granted under s 38A TCPA 1953 so it was not traversing into issues of fact or law which had been either expressly or impliedly decided by the High Court. Evidence was then presented in the second declaration application which was designed to shed light on the terms on which the consent had been granted. This included evidence as to the terms on which other consents for extraction activities were granted by the Council’s predecessor during the 1960’s.
[59] In the Council’s submission, none of the three declarations made by the Environment Court contradict the findings of the First High Court Decision. The Environment Court confined itself to assessing the implications of the consent granted in 1960 for the appellant, including whether the appellant can continue to rely on that consent under the RMA to operate the quarry today. Issues of estoppel do not therefore arise.
Discussion
[60] Given my findings in relation to Issue 1, I only consider this issue in relation to the first declaration. However, this makes no real difference to my conclusions.
[61] Despite the range of terms used by SVEL, I consider SVEL is asserting that a form of issue estoppel is engaged in this case. Issue estoppel is concerned with the prior resolution of issues, rather than causes of action, and precludes a party, or the Court, from “contending the contrary of any precise point which, having once been
distinctly put in issue, has been solemnly and with certainty determined against him”.23
[62] While it is not entirely clear from SVEL’s submissions, the point it appears to say was determined finally by the High Court is that SVEL’s s 38A TCPA 53 consent is a deemed resource consent under s 383 RMA and the Environment Court could not make any finding which undermined or contradicted that finding.
[63] I start by observing there is considerable debate over the extent to which the principle of issue estoppel applies to findings made in the Environment Court. The position was summarised by Wylie J in Guardians of Paku Bay Association Inc v Waikato Regional Council as follows:24
… in the High Court it has on occasion been assumed that issue estoppel could be applicable to findings made in a resource management context or by the Environment Court. However, other judgments have held that private law doctrines such as waiver, estoppel or election are not generally appropriate in the field of resource management law, unless exceptional circumstances exist. It has been held that the Act is a comprehensive code and that common law principles or equitable doctrine such as waiver, estoppel and election generally have no application.
[64] However, much of the reasoning which follows in the judgment relates solely to resource consent applications, and reflects the fact that each planning decision is made in an environment which is unique to that moment. Wylie J expressly leaves open whether issue estoppel applies to findings made by the Environment Court in an earlier decision between the same parties.
[65] The question takes on particular focus when, as here, what is at issue is the terms on which an existing consent was granted, and where the public interest intersects with the rights of the person claiming a right to continue that activity. In those circumstances, I see more force in the principle of issue estoppel applying. However, for reasons I go on to explain, I do not consider that the issue of concern to SVEL was squarely addressed and determined in SVEL’s favour by the High Court,
so no question of issue estoppel arises.
23 Joseph Lynch Land Co Ltd v Lynch [1995] 1 NZLR 37 (CA) at 41.
24 Guardians of Paku Bay Association Inc v Waikato Regional Council [2012] 1 NZLR 271 (HC) at
[59].
[66] The issues considered by Whata J were set out at [115] of his decision. The first was whether there was “sufficient reliable probative evidence to raise the reasonable possibility that the consent had been granted for the quarrying activity”. In that regard the Court held there was, relying on a letter from the Taieri County Council’s planner in 1963 and the minutes of a Council meeting in 1973. The second issue was whether the evidence, as a whole, showed that no consent was in fact granted. The Court’s conclusion was that the Council had not discharged the burden of showing that, and that there was “probative evidence that the quarry was
lawfully authorised by a permit or consent”.25 The Court however refused to make a
declaration, given the paucity of evidence on any issue other than the fact a consent had been granted.
[67] The references in the decision to there being a “resource consent” for quarrying can, when the decision is read as a whole, only be considered to reflect the language used by the parties and their assumption of what the outcome would be if a consent was granted in 1960. It was not a finding of the High Court, as the Court did not go beyond considering what had occurred in 1960. The legal consequences of the grant in 1960 were neither discussed nor ruled upon and therefore can not be said to form an “essential and fundamental step in the logic of the judgment, without
which it could not stand”.26
[68] SVEL’s reliance on paragraph [62] of the High Court’s decision was misguided. All that paragraph did was set out, in summary, SVEL’s submissions. The High Court did not address, let alone make findings, on all those issues. Neither the legal, or the factual, route from the grant of the consent in 1960 to the recognition of a resource consent under s 383 was the subject of a finding by that Court.
[69] For these reasons, I am satisfied that no question of issue estoppel arises and this error of law is not established.
25 At [86].
26 Talynich v Index Developments Ltd [1992] 3 NZLR 28 at 37.
Issue 3 – No jurisdiction under s 310 to make a declaration regarding a s 38A TCPA 53 consent
SVEL’s submissions
[70] The third challenge to the Court’s jurisdiction is that the Court had no power or jurisdiction to make a stand-alone declaration about the terms of the 1960 consent as it did in the first declaration. This is because that declaration is not about the “existence or extent of any function, power, right or duty” under the RMA, and so is not authorised by s 310(a) RMA, nor by s 310(c) or (d). SVEL even considers that the broad terms of s 310(h) do not provide scope for making the first declaration as it does not relate in any other way to “the interpretation, administration and enforcement” of the RMA. While SVEL accepts that the Court can consider the terms of a 1960 consent, if that were necessary to enable it to exercise its powers under s 310 RMA, that does not create a jurisdiction to make a separate declaration about the terms of a consent that is not a consent under the RMA.
The Council’s submissions
[71] The Council, however, says the Environment Court correctly relied on s 310(a) or, as an alternative, s 310 (h), as providing it jurisdiction to make the first declaration. The relevant parts of s 310 provide:
A declaration may declare-
(a) the existence or extent of any function, power, right or duty under this Act,
…
(h) any other issue or matter relating to the interpretation, administration, and enforcement of this Act, except for an issue as to where any of sections 95 to 95G have been, or will be, contravened.
[72] The Council says the essential question for the Environment Court was the extent of any right of the appellant to quarry Saddle Hill and this raised, as a question of fact, what the scope of the 1960 consent was. Related to that is the legal question about the extent to which the 1960 consent has ongoing effect to authorise quarrying today under the RMA. This squarely fits within s 310(a) RMA. The Council therefore considers that it was entirely appropriate for the Environment
Court to rule on the extent of any such rights, whether they are first established under the RMA, or one of its predecessors.
[73] Although the right was established in 1960, it was claimed by SVEL that the right continues to be recognised under the RMA to provide a lawful basis to continue quarrying. If the Environment Court did not have jurisdiction to make a declaration about the terms of a consent granted under the TCPA 1953, this would have the unlikely outcome of requiring a declaratory judgment to be sought from the High Court on those matters. That would not be consistent with the codification of the RMA and the wide supervisory powers given to the Environment Court to determine the rights that are now relied on by SVEL under the RMA.
[74] Furthermore, s 310(h) is a catch-all applying to “any other issue or matter relating to the interpretation, administration and enforcement” of the RMA. Even if jurisdiction was not found in s 310(a), it is clear that the question of whether the appellant has the right to quarry now, in reliance on the 1960 consent, is directly related to the interpretation and administration of the RMA.
Discussion
[75] There is jurisdiction to determine matters which are preliminary to, and a necessary step in, making a declaration of the type described in s 310 RMA. In discussing the Environment Court’s jurisdiction under s 310, Judge Treadwell observed:27
… there are occasions when a Court in reaching a decision on a matter which is within its jurisdiction is required to interpret matters which would normally be beyond its jurisdiction if that is essential to reaching a conclusion.
[76] The issue before the Court was whether the quarry was authorised under the RMA through s 10 as an existing use right or under s 383 as a “deemed consent” and, if so, what the extent of those rights were. Establishing the terms of the grant of consent in 1960 was therefore pivotal to determine what rights, if any, endured under
the relevant sections of the RMA. The first declaration was a logical step in
27 Coalition of Residents Association v Wellington City Council EnvC Auckland W56//2001,
23 July 2001.
addressing that issue as the Environment Court itself explained in the Fourth
Environment Court Decision.28
[77] I agree with Mr Garbett that it would be illogical to suggest that when parties seek declaratory assistance to determine whether, and to what extent, they have rights under s 9 or 10 of the RMA, the Court is precluded from declaring what the position was in relation to the initial authority for the activity in order to answer those questions. These are matters which are properly determined by the Environment Court, which regularly considers how historical rights have arisen for the purpose of determining whether those rights continue under the RMA, for example, as existing use rights under s 10. Indeed, this is acknowledged by SVEL when it submits that the Court has jurisdiction to consider the terms of the
1960 consent in order to exercise its powers under s 310 RMA. In effect, therefore, SVEL is only taking issue with the wording of the declaration which, presumably, it says should simply address the position under the RMA (in this case, that a deemed resource consent does not exist), without including a declaration as to the basis for that (which is that the terms of the 1960 consent mean it is no longer in force). That is to put form before substance, and would place an unnecessary constraint on how the Environment Court exercises its wide powers to make declaration.
[78] I therefore accept that the Court had jurisdiction under s 310 to make the first declaration and no error of law is established.
Issue 4 – second declaration wrong in law
SVEL’s submissions
[79] If I find there was jurisdiction to make declarations on the issues which the
Court did, SVEL considers the second declaration is wrong in law and a consent granted under s 38A TCPA 53 can be “in force” for the purpose of s 383 RMA.
28 At [11].
The Council’s submissions
[80] The Council acknowledges that both parties had proceeded on the assumption that once a permission was granted by a Council under s 38A TCPA 53, then s 383
RMA would deem that permission to be a resource consent under the RMA. However, the Council submits that the Environment Court was right to declare that the consent granted to Downer under s 38A TCPA 1953 was not in force at the commencement of the RMA because it was exhausted well before then. Therefore it could not have been deemed to be a resource consent with ongoing effect.
Discussion
[81] As I have already determined that the Environment Court erred in proceeding to make this declaration on the law when it was a hypothetical issue which was neither sought by the parties nor required to resolve the issues in dispute, this issue falls away and I need not consider it further.
Issue 5 – declaration that consent limited by quantity and purpose wrong in law
SVEL’s submissions
[82] The next limb of SVEL’s appeal is to assert that the Court erred in law in concluding and declaring that the 1960 consent was limited by quantity and purpose. SVEL submits that this finding is:
(a) inconsistent with the Court’s other factual findings;
(b) not supported by evidence; (c) unreasonable; and
(d) inconsistent with the Environment Court’s conclusions on the effect of
a s 38A TCPA 53 consent.
[83] The submissions made by SVEL on this point were prefaced by observations that the Environment Court, while proceeding on the basis that a consent existed as
determined by the High Court, “persisted in casting doubt on the existence and validity of the consent”. This was evidenced by the Environment Court, in SVEL’s words, being “close to contemptuous in its disrespect for and disregard of the High Court findings”. SVEL placed particular emphasis on the Court’s acknowledgement that there was some truth to the suggestion that it had difficulty
accepting the High Court’s decision, and on the Court’s observation that:29
The High Court found that a consent existed but would not or could not say what its terms were …. There is a resemblance to the Hans Christian Andersen story of “The Emperor’s New Clothes” about the existence of the
1960 consent.
[84] In SVEL’s view, the Environment Court also resisted other “contextual facts”
as determined by the High Court. In particular:
(a) it questioned whether the scale of quarrying undertaken by Downer in
the early 1960’s was carried on by subsequent quarry operators;
(b)it did not accept that it should put more than minimal weight on the letter of the Taieri Council planning officer, Mr Edwards;
(c) it continued to cast doubt on the validity of the consent; and
(d)it continued to be “derogatory” of the statement of Mr King recorded in the 1973 Council minutes, which SVEL relied on to say the consent went beyond the purpose of supplying the quarry material for the airport.
[85] SVEL then critiques the Court’s assessment of each piece of the evidence the Court relied on to come to its view that the 1960 consent was granted for a specified purpose and volume and says the Court was wrong to draw the conclusion that the consent granted was limited to a volume or purpose.
[86] SVEL says the Court’s reasoning falls into error in at least three ways:
29 At [19].
(a) first, the Court’s assessment of the 1964 Council minutes (which recorded a letter had been received complaining of the “desecration” of Saddle Hill but where the reported debate made no mention of the existence of a consent) was “infected” by the Court’s view that the Council had an interest in allowing the quarry because of its need for the gravel resource;
(b) the Court improperly weighed the Council minutes of
26 January 1973 where it was recorded that the 1960 consent was “primarily” to allow the commencement of quarrying of rock for the construction of the airport, thus, in SVEL’s submission, suggesting it was also for other purposes; and
(c) the Court “irrationally” relied on an indirect quote from the South Island Manager of Downer in a newspaper report in August 1960 over the official Council minutes in 1973.
[87] SVEL also says it is difficult to reconcile the Court’s factual conclusion on the terms of the consent with its conclusion that, in law, s 38A TCPA 53 only authorised the commencement of an activity and did not authorise the ongoing use. A construction of the section that does not allow conditions to be imposed on the use, but effectively allows them through the definition of the consented use, is “highly strained”.
[88] In summary, therefore, SVEL’s says:
(a) there is no evidence to support the volumetric/purposive hypothesis relied on by the Court;
(b)the Council’s assessment of evidence in support of this hypothesis errs in law in that it:
(i)assumes that the 196430 Council had a vested interest that affected its deliberations; and
(ii) decides that the word “primarily” in the 1973 minutes was a
“stretch” that could be excised;
(c) the Court’s treatment of Mr Edwards’ 1966 letter is inconsistent with the findings of the High Court, which the Environment Court purports to accept;
(d)section 38A TCPA 53 did not authorise the restriction of a quarrying use by reference to either the volume to be extracted, or the use to which the metal was put; and
(e) the finding of a volumetric/purposive limit on the consent is unreasonable.
The Council’s submissions
[89] The Council points out that the parts of the judgment which SVEL critiques came under the section headed “Finding the Facts” and relate to the factual assessment the Court undertook, based on documentary evidence, to establish what the consent in 1960 was granted for. This was a difficult task given there was no original consent document, nor any evidence of the application, of public notification, or of any decision made by the Council or its delegate. The factual finding that the Court made was that the consent was granted to Downer to quarry for the purpose of supplying approximately 50,000 cubic yards of rock for the construction of a new airport at Momona. This was properly based on inferences to be drawn from the available evidence.
[90] The Council relied on the conventional legal position that a factual finding could only amount to an error of law if there was either:
30 Although SVEL’s submissions referred to the 1966 Council it seems more likely this is a reference to the 1964 Council minutes as it is those the Court is referring to when discussing Council’s “interest”.
(a) no evidence to support the conclusion; or
(b)the conclusion was one that, on the evidence, the Court could not possibly have come to.31
[91] Even though SVEL recanted from its submission that the Court identified “some” evidence that might support the volumetric/purposive hypothesis, the Council submitted it was clear that there was evidence which supported that hypothesis as discussed by the Environment Court from paragraph [42] of the Fourth Environment Court Decision. This evidence included:
(a) the article in the Otago Daily Times from 27 August 1960, where the South Island Manager of Downer, Mr Swainson, indicated that 50,000 yards of rock is to be excavated from the well known landmark to provide base course material, but this will not materially affect the hill’s features;
(b)the second Otago Daily Times article on 23 September 1960 which again quotes Mr Swainson saying “the intention was to quarry in all some 50,000 cubic yards of rock from the hill”; and
(c) the evidence from the Council minutes in 1973, some 13 years later, which described the consent as “primarily for the construction of the airport at Momona”, and where the Court assessed the contemporaneous statements of Mr Swainson as likely to be more accurate than the recollections of Councillors some 13 years later.
[92] The Council submitted that the weighing of this evidence was the proper function of the Environment Court and SVEL was simply attempting to reargue the proper inferences to be drawn from the factual evidence presented to the Court. Furthermore, the Environment Court’s finding was clearly open to it and is consistent with the then owner, Mr Scurr, having operated a small quarry on site for
a number of years, then Downer, which won the consent to construct the airport at
31 Simon Hill Station Ltd v Royal Forest and Bird Protection Society of New Zealand Inc [2014] NZHC 1362 at [19](c)(ii).
Momona, being granted consent under s 38A to quarry rock from this site for the airport, after which, Mr Scurr resumed the existing use of the quarry.
[93] The Council, therefore, supports the Environment Court declaration on this issue, saying it involved a factual assessment, the outcome was reasonably open to the Court based on the available evidence and it was not irrational. Accordingly, it did not constitute an error of law.
Discussion
[94] The vast majority of issues raised under this heading are, as the Council submits, challenges to findings of fact made by the Environment Court. While Mr Shiels sought to colour them as all being, in essence, a legal issue on the basis that the existence of a consent is a question of law,32 I do not consider that the assessment of the relevant facts that precedes that determination engages a question of law unless it is tainted by some error in the reasoning process.
[95] The first error claimed was that there was no evidence to support the “volumetric/purposive hypothesis” as to the scope of the consent. The submissions in support of this assertion then revisited each piece of evidence relied on by the Court and submitted that the Court should have drawn a different inference from it. However, it is clear from the decision that the Court considered and weighed up SVEL’s submissions as to the proper inferences to be drawn from the available evidence alongside the alternative views and took care to explain why, on balance, it reached the view it did. I accept that when each piece of evidence is assessed in isolation it does not provide a strong basis for one conclusion over another. However, I accept it was reasonably open to the Court to make a finding that the consent was granted for the purpose and volume set out in the first declaration as, looked at in totality, the available evidence points more clearly to this conclusion than to any other.
[96] SVEL’s next concern is that, in assessing the evidence, the Court fell into the
same error that was identified in the High Court proceedings, in that it assumed the
32 Relying on the statement to this effect in the High Court decision at [19].
Council had a vested interest in protecting the gravel supply which the Council required for roading works.
[97] In the Fourth Environment Court Decision the Court said:33
We accept that in the First Decision based on [the Evening Star report of the March 1964 Council meeting], we loosely and incorrectly referred to the Council as having a “conflict of interest” in 1964. What we meant (and should have said) is that the Minutes showed the Council had an interest in the outcome because it had no other source of road metal of the quality of that supplied from the quarry on Jaffray Hill. That interest was relevant because it suggests that the councillors might not have been completely objective about the issue of quarrying on Jaffray Hill.
[98] SVEL considered that the Court fell into the same error because it still assessed the Council’s evidence in light of a perceived conflict of interest, even though it did not use that precise wording.
[99] However, the High Court decision did not suggest it was wrong to conclude that the Council had a vested interest, just that it was wrong to have relied on it as a factor relevant to its determination without first affording the parties “an opportunity to submit on its significance before relying on it as a factor relevant to its
determination”.34
[100] The Third and Fourth Environment Court Decisions revisited the assessment of all the evidence, including the report of the 1964 Council meeting, and this time around the parties were on notice if they wished to relate the appropriateness of that inference. SVEL’s submissions acknowledged that the “availability of gravel was a recurring topic in the Minutes” but did not make any submission to respond to the assertion that the Council had, at the very least, an interest in the supply of metal continuing. There was other evidence to support the conclusion that the Council had an interest in supporting a continuing supply of high quality gravel. In particular:
(a) the local newspaper, the Evening Star, reported on the Council debate as to whether action should be taken to stop the “desecration of
Saddle Hill”. One councillor was reported as saying “anyway, where
33 At [51].
34 At [66].
else would you get that quality [of] stone from?” And another said “where do you propose to get that quality highway stone from if you stop the quarrying? Tests have shown there is no other suitable rock around here”.
(b)In 1974, Mr Scurr, the owner of the property, sent a letter to the Minister for the Environment explaining that “almost all metal produced is supplied either to the MOW (directly or through contractors), or to the Taieri County Council, Mosgiel Borough Council or Catchment Board, all of whom are entirely satisfied with the quality of the metal produced and its availability locally. This considerably reduces the cost of transport which would otherwise be incurred”.
(c) The concern to maintain a source of quarrying was reiterated in a press release from the then Minister for the Environment in November 1974 where it was noted that “a benefit of the quarry is ready access to high grade metal for roading construction in the surrounding area”.
[101] The evidence, therefore, that the Council had at least an interest in the continued operation of the quarry, is supported in the documentary evidence and I do not consider that it was an error of law to take that factor into account in the Third and Fourth Environment Court Decisions.
[102] The next aspect of this issue is that the Court did not place sufficient weight on the letter of Mr Edwards, which SVEL asserts is inconsistent with the findings of the High Court. However, the High Court did no more than conclude that the Environment Court erred by placing minimal weight on Mr Edwards’ letter. When the High Court reviewed the letter, the only inference it drew was that “an honest and reliable person with contemporaneous knowledge of events recalled that a
permit or consent had been granted for the quarrying activity”.35 Indeed the
High Court noted that the way Mr Edwards worded his recollection of a landscaping
35 At [121].
condition “raises some doubt about accuracy” but that did not displace the key inference to be drawn from the letter which is that consent had been granted.36 The Environment Court accepts that inference and the entire decision proceeds on that basis. I do not consider therefore that the Environment Court’s treatment of this letter is inconsistent with the findings of the High Court.
[103] The next matter raised in relation to this issue is that s 38A TCPA 53 did not authorise the grant of a conditional use such as the Court determined was granted in its first declaration. However, there was evidence before the Court that, notwithstanding there was no express ability to do so, conditions were sometimes imposed on such consents. Equally, there is no reason to suppose that consents were not granted to commence an activity with a limited scope or purpose. As Whata J noted, whatever the Council’s legal powers, the Court had to have regard to the
Council’s practice.37 Given the factual evidence before the Court as to Council
practice at the time, it was not unreasonable to suggest that a Council could define the consented use in such a way as to give it a limited life or purpose.
[104] Finally, SVEL considered the finding of a volumetric or purposive limit on the consent was unreasonable. However, that appeared to be premised on the fact that one or more of the other points was established. Given that the finding in the first declaration was open to the Court on the facts and was not reached on the basis of any error or irrelevant consideration, that assertion, too, is rejected and the finding that the consent is limited by quantity and purpose is not in error.
Issue 6 – breach of fair trial principles, natural justice principles, s 27(1) New Zealand Bill of Rights Act; apprehended bias
SVEL’s submissions
[105] While this issue is expressed with reference to a range of common law and statutory principles which protect fair trial rights, the submissions focused almost exclusively on an allegation of apparent bias. Unusually, the factual foundation for
the alleged apparent bias was not based on circumstances occurring before the trial
36 At [119].
37 At [33].
or outside the Courtroom, but was inferred from the manner in which the proceedings were conducted.
[106] SVEL relied on the test for apparent bias set out in Saxmere Company Ltd v Wool Board Disestablishment Company Limited, where it was said that a Judge should be disqualified if a fair-minded lay observer might reasonably apprehend that the Judge might not bring in an impartial mind to the resolution of the question the Judge is required to decide.38 SVEL says that over the course of the second declaration application proceedings there was a series of events or rulings which reasonably warrant an inference that the Court’s perception “has become warped, and that the Court was unwilling to decide the proceedings on the evidence and
arguments put before it”.
[107] SVEL referred to a range of other principles in support of this submission. For example, a Judge may not intervene so as to cause a reasonable observer to think the Court partial as between the parties.39 Over-involvement by a Judge in the conduct of a case is also to be avoided, sometimes described as a Judge “descend[ing] into the arena”.40 The principles of natural justice require a Judge to hold “an even hand”, and questions of excessive judicial intervention, or apparent bias, are “merely particular illustrations of the overarching principle that there must be a fair trial”.41
[108] Mr Shiels submissions on what constitutes a breach of fair trial rights also relied on Hayer v Hayer, where it was held inappropriate for a Judge to not just indicate to a party how to conduct the case, but then to follow up on that indication by amending the pleadings to introduce the point he had suggested.42 SVEL says it goes beyond the functions of a Judge to suggest that a particular case was the case a party ought to run. Here, the Court not only crossed that line, but continued down that path even when the Council indicated, at least to some extent, that it did not
consider the path was appropriate.
38 Saxmere Company Ltd v Wool Board Disestablishment Company Limited [2009] NZSC 72, [2010] 1 NZLR 35 at [3], [37], [89] and [127].
39 Tahere v R [2013] NZCA 86 at [31].
40 E H Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146 (CA) at 150.
41 Williams v Williams HC Hamilton A62/00, 21 March 2001 at [102]-[103].
42 Hayer v Hayer [2012] EWCA Civ 257 at [38].
[109] SVEL’s submissions then embarked on a lengthy review of the proceedings, going back to events which occurred during the first declaration proceedings, to illustrate why it considered, looked at in the round, the Court did not observe such fair trial rights and displayed apparent bias.43 The key points it made are as follows:
(a) In 2013 the Court’s Registry made an ex parte enquiry of the Council about the notification date for the current Council plan. Although the Council’s reply ensured that SVEL was copied into the communication, and the Judge subsequently recorded that the communication was not in accordance with standard practice which it regretted, SVEL says this would indicate to a “fair-minded observer” that the Court was prepared to seek and receive evidence from the Council without the knowledge of SVEL.
(b)The Court made the orders sought in the first interim enforcement proceedings on an ex parte basis, even though the application did not suggest any real urgency and SVEL gave notice the next day that it wished to be heard. The Court granted the interim enforcement order without hearing from SVEL or requiring an undertaking as to damages from the Council. SVEL takes particular exception to the comment in the decision that, while the related declaration proceedings had been adjourned due to unavoidable circumstances, “the respondents should not be able to profit from the delay, obtaining
an undertaking as to damages in these circumstances”.44 In SVEL’s
view this might “lead a fair-minded observer to think that the Court considered SVEL was inappropriately gaming the system and should be stopped”.
(c) SVEL is critical of the fact that while the interim order was the subject of agreed minor amendment at the substantive hearing in December 2012, its application to cancel the interim order has still not
been dealt with.
43 The submissions amounted to some 20 pages. This summary simply highlights key points.
44 Dunedin City Council v Saddle View Estates Ltd [2012] NZEnvC 247 at [11].
(d)While SVEL acknowledges that the First Environment Court Decision was later reversed, it considers that the Court assessed the evidence in a way that was unfavourable to SVEL, including making the conflict of interest finding which the First High Court Decision said was an error of law, and this erroneous approach continued throughout the balance of the process.
(e) In the Second Environment Court Decision (which considered but declined to make a declaration on existing use rights), the Court noted that the only submission on burden of proof was from SVEL saying that the Council needed to prove the absence of existing use rights. However, the Court disagreed and referred to SVEL as “a person who
merely stares down the Council”.45 Furthermore, the Court was not
prepared to rule on the issue the parties chose to put before it, but considered it had a role beyond that, by not accepting as lawfully established even the existing use rights that the Council acknowledged.
(f) Before the Council filed its further application for a declaration following the High Court’s decision, it sought enforcement orders, including interim orders, and the Court again made interim enforcement orders without hearing from SVEL and without an undertaking as to damages from the Council. SVEL says that this demonstrates that the Court “had difficulty accepting the High Court’s decision and it was prepared to grant a further interim enforcement order which it knew adversely affected SVEL financially without hearing from SVEL”.
(g)The Court then issued a minute in late February 2015 querying whether it was functus officio in respect of the first declaration application as it had not been struck out. At the same time the Court issued a minute which required SVEL to file a notice of opposition
with supporting affidavits to the second enforcement order
45 At [47].
application. SVEL say there was no basis in law for requiring this, and it reversed the onus of proof, requiring SVEL to show why no enforcement order should be made, when the application was premised on the making of a declaration that had not yet been applied for.
(h)After the second declaration proceedings had been filed the Court received a letter about the proceeding from the local MP which expressed “immense” community concern regarding the quarrying on Saddle Hill. The Judge advised the parties of this but assured them that “no consideration or weight will be given to this letter”. However, SVEL says it seems that this letter did play a factor in how the Court then dealt with the proceedings.
(i)After the hearing, which did not occupy the full two days scheduled, the Court issued a minute seeking further advice on two factual matters and submissions on six legal issues. In SVEL’s view some of these matters were not relevant unless the Court considered it was “free to disregard the High Court decision”. SVEL expressed its concerns about the scope of these requests in a memorandum of counsel and also queried why the order of submissions required SVEL to respond first. In SVEL’s submission, it was not appropriate for the Court to raise issues in this way as its role was “not inquisitorial and
… could create the perception that the Court was striving to reach a particular outcome”.
(j)The Court responded in a minute dated 10 June 2015. The Court accepted SVEL’s point about the order of submissions and varied the directions. It said that the Court was only “attempting to ascertain the truth” and was “taking a mild inquisitorial role”. It observed that the Council had adopted “a very restrictive role” and that the Court should establish the facts on a public interest, rather than a party-party basis. In SVEL’s view, the fair-minded observer would “very likely conclude that, for whatever reason, the Court had abandoned its role
as an impartial adjudicator of disputes properly before it and was on a quest of its own for the truth in the public interest”.
(k)Considerably later, on 9 March 2016, the Court issued a minute requiring the Council to file an affidavit about how it decided who was directly affected and whether there should, even at this late stage, be notification of the Council’s application. Ultimately though, after receiving submissions from the parties the Court did not pursue that matter, and in its Third Environment Court Decision the Court confirmed that it had decided not to direct a further notification, albeit noting that it remained “uneasy that the public has not been notified of the process” but that given the opposition of the parties it had decided not to direct notification.
(l)In addition to SVEL’s concerns about the findings of the Third Environment Court Decision, SVEL remained critical of the Judge’s focus on the “public interest” and at what SVEL described as the Court’s “irritation” that the parties’ positions had not supported wider notification.
(m)On 2 August 2016, having received a memorandum from the Saddle Hill Neighbours Group, the Court again enquired whether any party opposed the Group joining as a s 274 RMA party. The parties were opposed, with SVEL raising jurisdictional issues. The Court subsequently refused leave for it to become a s 274 RMA party. However, SVEL again considered that this points to the fact that the Court was not wishing to decide the issues on the basis of the evidence and submissions before it, and was willing to hear submissions beyond those of the parties involved.
(n)Finally, SVEL points to the Fourth Environment Court decision which it says is permeated by the errors which are raised elsewhere in this appeal. Again it says that a fair-minded observer might “reasonably apprehend that the Court had lost its objectivity and was determined
to uphold its own hypothesis, regardless of what the High Court said, regardless of what the evidence showed, regardless of the terms of the application, and regardless of the submissions of the parties.
[110] In summary, SVEL says this Court should set aside the Fourth Environment Court Decision on the grounds that a fair-minded observer might reasonably consider that the Court had not brought an impartial mind to the question before it and that natural justice had been denied to SVEL.
The Council’s submissions
[111] The Council accepts that SVEL is alleging apparent bias not actual bias, and that the authoritative test is that set out in the Saxmere case. However, it says that it is also important to consider what makes up the characteristics of the fair-minded lay observer and their knowledge. That person is “presumed to be intelligent and to view matters objectively [and] is neither unduly sensitive or suspicious nor complacent about what may influence the Judge’s decision”.46
[112] The Council also referred to the need to:
(a) identify what is said that might lead a Judge to decide a case other than on its legal and factual merits; and
(b)articulate the logical connection between that matter and the feared deviation from the course of deciding the case on its merits.47
[113] In this case, the Council submits that the appellant has focused on analysing the Court’s decisions and then worked back from that by suggesting that the outcome demonstrates that the Court appears biased. In the Council’s view, the respondent’s submission is, in substance, an assertion that because the outcome of the case was not in SVEL’s favour, that in itself would lead a fair-minded lay observer to apprehend the Court may be biased. In the Council’ view, something more must be
identified to reach that conclusion. However, when the various matters raised by
46 Saxmere, above n 37 at [5].
47 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
SVEL are considered objectively, there is nothing in them that would lead a fair-minded lay observer to apprehend that the Court might be biased against SVEL.
[114] For example, the Council says the unilateral enquiry made to the Council by the Court’s Registrar about the date of notification for the current District Plan was acknowledged to have departed from standard practice and was regretted. In the Council’s submission though, such an administrative error could not cause the impartial observer to consider that the Court might be biased against SVEL, particularly given it was simply a request for a public document relevant to the proceedings and SVEL was immediately made aware of the request by the response of the Council to the Court.
[115] More importantly though, if the proceedings are looked at holistically, there are a range of decisions on this difficult issue that have been both for and against each party. In the Council’s submission this demonstrates that the decisions were made on the merits of the arguments and the evidence, nothing more.
[116] The Council also points out that the appellant now relies on procedural and substantive rulings in the earlier decisions as raising a perception of bias, yet none of those previous substantive or procedural rulings were challenged on this basis at the time. While 16 errors of law were alleged in the first High Court appeal, none of them included apparent bias and the Council says they can not reasonably be relied on now to support a perception that, in the Fourth Decision, the Court displayed apparent bias.
[117] Furthermore, the Court has been transparent and open in its reasoning, and has given the parties the opportunity to submit on interim findings of the Court. In light of those submissions, the Court altered its final decision to take into account points made by both parties. That demonstrates that the Court was prepared to be influenced by the parties and did not adopt a fixed position. Particular examples relied on by the Council included:
(a) in its interim and final decisions the Court proceeded on the basis of the position that a consent had been granted;
(b)it issued an interim decision calling for submissions and providing the parties with a reasonable time to address the interim findings;
(c) it accepted the parties’ submissions on the application of “Bayes Therom” to the evaluation of evidence, and abandoned that in its Fourth Environment Court Decision;
(d)it modified its final declaration having responded to submissions on the text of it; and
(e) it gave both parties a further chance to submit on the correct inferences to be drawn from the evidence.
[118] If the submission is that the Court demonstrated apparent bias against SVEL, that does not stand up against the fact that there have been a range of findings made against the Council. Indeed, Mr Garbett says that the Council was “roundly criticised” by the Court. In the Council’s submission that would suggest to a fair- minded lay observer that the Court has been even handed in rejecting the parties’ position and the arguments of counsel where they have not persuaded the Court. Particular examples of this include the Court:
(a) rejecting the Council’s position that the quarrying authorised by the
1960 consent was confined to Area B;
(b)rejecting Council’s submission that s 38(1) TCPA 53 explicitly or implicitly authorised the ongoing use of land or buildings; and
(c) rejecting Council’s submissions on the interpretation of s 38A(4) and
(5).
[119] Finally, the Council considers that the appellant has taken a selective approach when it comes to challenging substantive decisions made by the Environment Court based on apparent bias. It notes that these proceedings have proved particularly difficult for both the parties and the Court over many years. The Environment Court laboured under the disadvantage of not having any primary
consent documents before it and it was unsurprising that the Court found the issue difficult to resolve conclusively, leading to a series of decisions, including interim decisions, and calls for further information and submissions as the proceedings developed. In the context of the history of the proceeding, the interactive procedure adopted by the Court could not be said to be unreasonable and this alleged error of law cannot be made out in this case.
Discussion
[120] The nub of SVEL’s concerns is summarising its submission that:
… the Court had abandoned its role as an impartial adjudicator of disputes properly before it and was on a quest of its own for the truth in the public interest, and that the path the Court seemed determined to follow could not possibly advantage SVEL.
[121] I consider it undeniable that the Court was not content to confine itself to the positions adopted by the parties. It openly acknowledged that it was taking at least a “mild inquisitorial role ... in order to establish the facts”. As the Court noted in its minute of 10 June 2015, the further enquiries the Court made in order to ascertain the truth, on the balance of probabilities, about how more intense quarrying occurred on Saddle Hill, had resulted in the production of important records, being the
minutes of the Council’s finance committee. The Court noted that it was:48
… an unfortunate fact that any hint of an inquisitorial role raises suggestions of bias in the minds of parties interested in a proceeding. There is almost nothing that the Court can do about that except to be scrupulously transparent about what it is doing (as the Court is attempting to be).
[122] It appears therefore that what is really in issue is whether the Court should have confined itself entirely to the positions and evidence the parties initially chose to present, or whether it should have (as it did) pressed for further information and submissions from the parties, and required them to respond to additional legal and factual issues which occurred to the Court as a consequence of hearing the
proceedings.
48 At [7].
[123] Mr Shiels’ view was that, in declaration proceedings, the Court must confine itself to the facts in law as pleaded by the parties, citing Tasman Action Group Inc. v Inglis Horticulture Ltd, where the Court said:49
Unlike in Schwass, in the declaration decision the Environment Court was not performing a quasi-inquisitorial function. Rather, the Court’s function was the classic judicial one of finding facts, identifying the applicable law and applying the latter to the former to determine rights.
[124] It has been acknowledged that the Court has a wider role in simply adjudicating between the parties when dealing with appeals of resource consent applications and of plans. That was confirmed by Judge Thompson in Hamilton East Community Trust v Hamilton City Council:50
I start with the proposition that the proceedings in this Court are not, as is most of the case in the general Courts, simply a contest inter-partes. This Court has a wider role – viz to seek an outcome that best complies with, and promotes the purpose of the Act:– see Part 2 of the RMA and in particular, s 5.
[125] However, even if the Court’s function is more limited in a declaration application, it is required to find the relevant facts and identify the applicable law. It cannot be beyond the jurisdiction of the Court to explore with the parties whether their assumptions as to what are the relevant facts, and as to what is the relevant law which applies to those facts, are correct. Furthermore, the Council was one of the parties to the litigation and it had an obligation in its role as the public authority charged with enforcement of the RMA to assist the Court fully on that enquiry. As was noted in Beca v Auckland City Council, the Council has a statutory
responsibility to place the best evidence it can before the Court.51 I see no reason
why that should not apply equally in declaration proceedings which are brought by the Council as it does in any other type of proceeding under the RMA.
[126] That position is underscored by s 276 of the RMA which allows the
Environment Court to “call for anything to be provided in evidence which it
considers will assist it to make a decision or recommendation”.52 While that power
49 Tasman Action Group Inc. v Inglis Horticulture Ltd EnvC Christchurch C126/2007,
18 September 2007 at [24].
50 Hamilton East Community Trust v Hamilton City Council [2014] NZEnvC 99 at [3].
51 Becka v Auckland City Council EnvC Auckland A102/99, 22 September 1999.
52 Section 276(1)(b).
clearly has more relevance in decisions on resource consent applications, or on the formulation of plans under the RMA, there is no barrier to it being exercised in the context of declaration proceedings where it is considered necessary to understand the factual context in which the application for declaration is being made.
[127] Equally, where the parties understanding of the applicable law is considered by the Court to be either incorrect, or to omit consideration of some relevant factor, there can be nothing objectionable about the Court drawing that to the parties’ attention and seeking further submissions on it. This situation differs from a simple inter partes claim where the onus is on the parties to decide what claims to plead and what evidence to adduce.
[128] In the circumstances of these proceedings, where the Council sought a declaration as to the correct legal position as to the rights to quarry at Saddle Hill, I am satisfied the Court did not go beyond its proper function by raising further factual and legal issues which were relevant to the declarations sought and seeking submissions on them. That, on its own, could not lead in these circumstances to a finding there had been apparent bias or any breach of natural justice.
[129] The next issue then is whether the way the Court responded to the respective parties and made procedural and substantive rulings that affected them in the proceedings, created a perception that the Court may be adversely disposed to SVEL. However, even SVEL appears to acknowledge that the disadvantage to SVEL was the outcome of the Court’s quest “for the truth in the public interest”
rather than the reason for the Court finding against SVEL.53 The factors which
SVEL relies on to suggest it was not being treated impartially do not, in my view, bear scrutiny.
[130] First, the unilateral email enquiry made to the Council as to the notification date for the current Dunedin City Council plan could not, to a fair-minded lay observer, support a claim of apparent bias. The Court was not seeking a submission from the Council and it apologised for the divergence from its standard practice. The
incident can only be assessed as an honest mistake which was swiftly rectified.
53 See SVEL’s submission set out at [120] above.
[131] SVEL relied heavily on the Court’s decision to make interim enforcement orders without hearing from SVEL or without requiring an undertaking as to damages from the Council. However, there was clear statutory authority for the Court to determine the applications as it did. Section 320 RMA expressly provides that if an Environment Court Judge considers it necessary to do so, the Judge may
make an interim enforcement order without holding a hearing.54 While the Judge
can take into account whether the applicant has given an appropriate undertaking as to damages, it is clearly not mandatory that one is provided and it is not uncommon for the Courts not to require such undertakings from Councils. Furthermore, notwithstanding assertions that the terms of the interim enforcement orders were financially detrimental to SVEL, the decisions were never challenged and it is a reasonable inference from that that SVEL knew it was unlikely that the interim orders would be substantively changed if reconsidered. I do not consider therefore that the making of interim enforcement orders in these circumstances gives rise to an inference of apparent bias by the Court.
[132] The next matter which SVEL suggests leads to an inference of apparent bias is the Court’s apparent willingness to reconsider whether any party should be allowed to join as s 274 parties, even after the Third Environment Court Decision had issued.
[133] I accept SVEL is correct to conclude that the Court had misgivings about not having any other party involved than SVEL and the Council. Furthermore, I do not understand the Court’s concern on that count. The matters at issue would stand and fall on the available evidence as to what had occurred in the past, rather than on an assessment of current and future effects of the activity which other parties might bring to the hearing. There was no indication that any potential party would be in a better position to provide evidence of the relevant past events than the Council and SVEL. That said, the Court cannot be criticised for soliciting the parties’ views as to whether any further party should be served, or should be allowed to join the proceedings, nor for ultimately accepting the parties’ submissions that it was not necessary or appropriate to allow any other party to join. Therefore, in my view,
notwithstanding the Court’s misgivings, it observed the principles of natural justice
54 Section 320(2)(b).
and acceeded to the parties’ views. Again this factor does not support SVEL’s
contention that fair trial principles were breached.
[134] Finally, SVEL suggests that the history of the proceedings, including the content of minutes issued by the Court, as well as the language and findings of the judgments, would lead a fair-minded observer to reasonably consider that the Court had not brought an impartial mind to the questions before it, to the disadvantage of SVEL.
[135] The difficulty with this issue is trying to determine whether the Court’s findings were simply because it did not accept SVEL’s case on the merits, or whether it was predisposed to find against SVEL, no matter what SVEL submitted. Of course, the former position is present in almost every case heard by a Court, and something more is required to establish apparent bias than that the Court resists the arguments of the unsuccessful party.
[136] The real issue is whether it afforded SVEL a full opportunity to be heard on every issue the Court had to determine, and whether it demonstrated that it was open to amend its view in light of those submissions if it accepted those submissions as correct.
[137] While SVEL points to procedural matters which suggested bias, such as requiring SVEL to file its submissions first on the further issues the Court sought submissions on following the May 2015 hearing, the Court accepted SVEL’s submission that this was inappropriate and reversed the order of submissions. This was not the only procedural issue in which the Court considered and altered its directions in response to matters raised by SVEL.
[138] Similarly, I accept the submission from the Council that the Court was even-handed in its willingness to critique the position of the parties. As Mr Garbett said, the Court was, at one stage, “roundly critical” of the Council and rejected the Council’s stance in the second declaration application that the consent was limited by area. In my view, a fair-minded observer would be satisfied that the criticism of the party, or their cases, was motivated not by partiality, but by a genuine concern
that they had not fully considered all the factual and legal issues which bore on the appropriateness of the declaration sought.
[139] Indeed, the same critical tone was used when the Court discussed the conclusions of the High Court, casting doubt on whether the High Court had fully considered all the implications of its decision. While the analogy with the Emperor’s new clothes was perhaps uncalled for, the parties could be left in no doubt that the Court was prepared to be critical of any finding which it did not consider was factually or legally robust, rather than that it was, or might be, partial.
[140] In summary, therefore, there is nothing in the matters which SVEL has raised which suggests to me that the Court did not scrupulously observe the principles of natural justice, allowing the parties to consider and submit on all matters which the Court considered were relevant to the declarations it was making. The Court was to make further enquiries into the factual matters which it considered had a bearing on the declarations and to raise with the parties legal issues which it considered relevant to the subject matter of the declarations.
[141] While I accept that the language of the Court at times showed irritation or testiness, that was not aimed at any particular party, nor did it demonstrate any partiality. The Court was concerned to have the best evidence and information before it before making any binding declaration and in its dedication to achieve this end it raised issues which neither SVEL nor the Council had anticipated. However, on each occasion it did this the Court’s procedure was unimpeachable. It set out the issues it considered had not been addressed, sought submissions on them and accommodated the parties’ requests as to the timing and order of those submissions. Then, as the Council observed, the Court modified or amended its tentative views in light of those decisions.
[142] In those circumstances, I am not satisfied that the Court showed apparent bias, nor that SVEL’s fair trial rights were denied. Accordingly this ground of appeal fails.
Outcome
[143] SVEL has succeeded in part. The second and third declaration made in the Fourth Environment Court Decision are set aside. In all other respects the appeal fails.
[144] Costs are reserved.
[145] Given the outcome, my tentative view is that costs should lie where they fall. If either party seeks costs a memorandum must be filed within 20 working days of the date of this decision, with any memorandum in response within a further
10 working days. Costs will be determined on the papers unless I require to hear from the parties. If no memorandum is filed within the timeframes above, I order that costs lie where they fall.
Solicitors:
O’Neill Devereux, Dunedin
Anderson Lloyd, Dunedin
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